NM v R
[2012] NSWCCA 215
•08 October 2012
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: NM v R [2012] NSWCCA 215 Hearing dates: 31 August 2012 Decision date: 08 October 2012 Before: Macfarlan JA at [1];
McCallum J at [73];
Grove AJ at [74]Decision: (1) Dismiss the appeal against conviction.
(2) Grant leave to appeal against sentence.
(3) Quash the sentences imposed in the District Court on 23 August 2010.
(4) In substitution for the sentences imposed on 23 August 2010, sentence the appellant as follows:
Counts 1 and 3: concurrent terms of imprisonment of 4 years with non-parole periods of 3 years each to date from 19 May 2010.
Counts 2, 4 and 5: concurrent terms of imprisonment of 5 years with non-parole periods of 3 years and 6 months each to date from 19 May 2010.
Overall sentence: imprisonment for 5 years with a non-parole period of 3 years and 6 months to date from 19 May 2010.
The earliest date upon which the appellant is eligible for release on parole is 19 November 2013.
Catchwords: CRIMINAL LAW - APPEALS - conviction appeal - sexual intercourse without consent - whether verdict unreasonable, or cannot be supported having regard to the evidence - whether complainant's evidence credible despite inconsistencies - whether trial judge gave erroneous directions to jury - whether judicial bias shown
CRIMINAL LAW - APPEALS - sentence appeal - sexual intercourse without consent - aggregate term of imprisonment of nine and a half years with six and a half years non-parole period - whether sentence manifestly excessive - whether objective seriousness of offences to be assessed having regard to previous relationship between offender and complainant and their ongoing intermittent sexual relationship - whether sentencing failed to conform with principles in Muldrock v RLegislation Cited: Crimes Act 1900
Criminal Appeal Rules
Evidence Act 1995Cases Cited: Bellchambers v R [2011] NSWCCA 131
M v R [1994] HCA 63; 181 CLR 487
Markarian v R [2005] HCA 25; 228 CLR 357
Mohamed v R [2008] NSWCCA 45
Muldrock v R [2011] HCA 39; 85 ALJR 1154
R v Hendricks [2011] NSWCCA 203
R v Koloamatangi [2011] NSWCCA 288
R v Mason [2001] VSCA 62
R v XX [2009] NSWCCA 115; 195 A Crim R 38
SKA v R [2011] HCA 13; 243 CLR 400
Wiren v R (1996) 89 A Crim R 356
Zreika v R [2012] NSWCCA 44Category: Principal judgment Parties: NM (Appellant)
Regina (Respondent)Representation: Counsel:
Appellant in person
N Noman (Respondent)
Solicitors:
Appellant in person
Solicitor for Public Prosecutions
File Number(s): 2009/154165 Decision under appeal
- Citation:
- R v NM
- Date of Decision:
- 2010-08-23 00:00:00
- Before:
- Ellis DCJ
- File Number(s):
- 2009/154165
Judgment
MACFARLAN JA: After a trial in the District Court before a judge and jury, the appellant was convicted of five offences of sexual intercourse without consent (s 61I of the Crimes Act 1900). He was sentenced to an aggregate term of imprisonment of nine years and six months, comprising a non-parole period of six years and six months and an additional term of three years.
The appellant, who is unrepresented on appeal, appeals against his convictions on the following grounds:
"1. the verdict is Unsafe and Unsound.
2. Prejudicial directions given to jury during trial and in his honours summery [sic] of trial.
3. Judicial biased [sic] against the Appellant by his honour Judge Ellis.
4. Evidence of Consent to sexual Intercourse given to the Appellant by the complainant not discredited by Crown during the trial".
The appellant also seeks leave to appeal against his sentence, on the following grounds:
"1. the sentence is manifestly excessive.
2. That all the offences are one course of conduct and thus the sentences should have been concurrent.
3. The failure of his Honour to take all the mitigating factors into account when sentencing appellant".
By leave given at the appeal hearing, the appellant added a further ground of appeal against his sentence: that the sentencing of the appellant did not conform with the principles stated in Muldrock v R [2011] HCA 39; 85 ALJR 1154. He withdrew ground 3 of his appeal against sentence.
The appellant was represented by counsel at his trial and by a solicitor at his sentencing hearing.
THE CROWN CASE AT TRIAL
The complainant's evidence
The complainant gave evidence that she met and commenced a relationship with the appellant in 2006, when she was about 31 years old. She and the appellant parted company a number of times before their final separation in March 2009. The complainant had three children by a previous relationship, including AN who was aged about 13 in 2009. In April 2009 the complainant was living in a cabin at the back of her parents' house. After their break-up, she and the appellant continued to communicate, often by SMS texting. The offences were alleged to have occurred on the night of 30 April 2009.
At 7.24 pm on 30 April 2009, following earlier exchanges of messages, the complainant sent a text message to the appellant saying: "do U just wont to have sex that's it that's all I wont if so come to the cabin then when were dun u can leve SMS if so [sic]". The appellant telephoned the complainant shortly before midnight and said "Do you still want me to come over?", to which the complainant said "Yes".
The complainant gave the following evidence as to what occurred when the appellant arrived at her cabin about three minutes later:
"Q. And when he turned up at the cabin when you saw him did you notice anything about what he looked like?
A. He looked like .. (not transcribable) .. evil. Didn't look like, didn't sound like he was intoxicated or anything it just sounded like, you'd look at him and it was like black.
Q. I just want to understand what you said. Did you say it didn't look like he was intoxicated or--
A. No, it didn't look like he was intoxicated. He didn't sound, it just, in his eyes, it was the way he was, it was evil.
Q. So you say you noticed something about his face?
A. (No verbal reply).
Q. And when he arrived at the cabin did he say anything?
A. Just, no, just took off his clothes the second he came to me and he said, he said words in the effect of 'suck my cock now'. That's what.
Q. After he said 'suck my cock' did you say anything to him?
A. I said 'No, leave, leave'. I didn't want him there.
Q. And when you said 'No, leave' what happened next?
A. He pushed me, he forced me up the back, threw me like, it's like a force that moves you up and pushes you back when he got on top of me. While he was on top of me he asked me to put the condom on. I said 'No' and I asked him to leave.
Q. Was a condom in fact put on?
A. He put it on while he had me down on the bed.
Q. And after he put the condom on what happened then?
A. Forced it that hard inside me, but it hurt when he put it in" (Transcript 24 May 2010, pp 3 - 4).
This act of penile/vaginal intercourse with a condom was the subject of Count 1 in the Indictment against the appellant. The complainant then gave evidence of the following non-consensual intercourse that immediately ensued: penile/anal with condom (Count 2), penile/vaginal without condom (Count 3), penile/anal without condom (Count 4) and penile/vaginal without condom and with ejaculation (Count 5).
The complainant gave evidence that she scratched the appellant's lower back "to try and get him off" and that during the acts of intercourse she was crying "all the way through" and "begging him to stop". She said that the appellant ripped her clothing and that after the appellant left she placed the torn items of clothing in a plastic bag and the used condom in a plastic container. She said that she was bleeding and in pain as a result of the intercourse. As the appellant left the cabin the complainant saw her daughter, AN, coming from the main house.
The appellant said that the following morning she told her friend, RS, that she had been raped by the appellant. The appellant did not want to report the assaults to the police but RS "badgered" her to do so. Together, they called the police. As a result, Detective Senior Constable Bradley Boyd and Constable Rebecca Cambridge visited the complainant's home, leading to the complainant being taken by the police to a local hospital where she was examined by Dr Annette Barkey.
The complainant's daughter's evidence
AN gave evidence that she observed her mother to be in a very distressed condition, with her clothes torn, one arm across her stomach and the other on her mouth and she was shaking and "couldn't breathe". AN also heard a loud, angry male voice speaking words like "slut".
Subsequent text messages
The complainant and the appellant exchanged the following text messages on 1 May 2009 (references in the messages to the names of the parties have been deleted):
Date
From
To
Time
Message
1/5/09
Complainant
Appellant
12.32pm
hope it was worth putting me throw that last night no one has ever mad me feel so scard in my life I hope ur proude of wot u did
1/5/09
Appellant
Complainant
12.34pm
Can you please answer ur phone
1/5/09
Appellant
Complainant
12.36pm
What happen
1/5/09
Complainant
Appellant
1.13pm
Do u wont to meat so we can talk... u know i love you so much that's wot braken my heart im scared moor of loseing the love I have for u im sorry for doing this to u I wish I was dead
1/5/09
Appellant
Complainant
1.14pm
I will cal u 2moz
1/5/09
Complainant
Appellant
1.37pm
this is goodby im so sorry u don't have to wary anymore I won't be here for to long as I can't live with wot I turned u into I don't know why u said or dun wot u did but for my kids n u are better off with out me so please don't think bad of me for wot I must do it was't the [appellant] I new n loved take care my life means is empty now by
Text messages exchanged on 2 May 2009 included the following:
Date
From
To
Time
Message
2/5/09
Appellant
Complainant
8.39am
Was what me im still in bed u woke me up
2/5/09
Complainant
Appellant
8.41am
So fucken glad u can sleep
2/5/09
Appellant
Complainant
8.41am
What do u want me to say
2/5/09
Complainant
Appellant
8.54am
The truth but wot u did to me I did't deserve that but to u I was always a slat so fucken how my life is now dus not mean anything to ur life dus it wot do I wont u to say ur fucken kidding ant u think u can just walke away from this no way I will tell every one will know now
2/5/09
Appellant
Complainant
8.56am
Wel if u wont talk to me how can I talk to u
2/5/09
Complainant
Appellant
9.03am
Im over trying to talke to u know u wont to talk why so i keep wot you did to myself n everyone finds do understand how fucked up in the head i am i cant sleep or eat no u don't
2/5/09
Appellant
Complainant
9.05am
I don't know what to think ok
2/5/09
Complainant
Appellant
9.23am
I keept ur condom with ur DNA N MY CLOSE SO I DON'T CARE WOT U THINK ANYMORE ALL I WONTED WAS FOR U TO LOOK ME IN THE EYE SO U CAN SEE WOT U DID TO ME BUT NOW I LIVE WITH THIS ANYMORE IM RING TAMMY SO SHE WIL BE THERE WHIL I MAKE A REPORT TO THE POLICE I TRYIED TO LET U SAY SORRY BUT COOLED HARD TRUTH IS U RAPED ME
2/5/09
Appellant
Complainant
9.25am
Ive tried to talk to u u wont answer the phone
2/5/09
Complainant
Appellant
9.26am
Leve me alone now I can't help u ok
2/5/09
Appellant
Complainant
9.28am
U expect me to just believe u when u wont even talk to me
2/5/09
Complainant
Appellant
9.32am
Why because im going to the cops to late in ringing tammy u hoped I wood forget
2/5/09
Appellant
Complainant
9.38am
I don't care is u are going to the cops because I don't know what happened all i know is i got a message asking me to come over for sex then u saying i force myself on u do what u want I don't know what to believe and al the condom proves is we had sex
Complaint evidence
The Crown led evidence from RS, Detective Senior Constable Boyd, Constable Cambridge and Dr Barkey of complaints made to them by the complainant.
The electronically recorded interview of the appellant
The Crown tendered an edited copy of the record of an interview Detective Boyd conducted of the appellant on 3 May 2009.
The appellant was recorded as giving the following description of what occurred after he arrived at the complainant's home late on 30 April 2006:
"A She told me to come in. The lights were still out at this time. I said, 'Do you want me to turn the lights on?' And she says, 'No, get undressed and get into bed. I want to fuck.' They were her words.
Q44 O.K. Yep.
A All right. We, I think we went for about an hour and she also asked me to have anal sex with her at the same time.
Q45 Yep.
A Like, and I asked where the lubricant was. She said she had no idea where it was, so we didn't end up using it. Um, when we were finished, I actually got up and was getting ready to leave. She turned around and said, 'Yeah, that'll be right. Come here, fuck me and then just get up and leave.'
Q46 Ah hmm.
A I said, 'Well that's what you said to me in the message that you sent me.'
Q47 Yep.
A And she turned around and said, 'Yeah, that'll be right. You don't give a shit about me whatsoever.' I said, 'Look, I'm not putting up with this shit anymore. I'm going. And please don't ever call me again.' All right. I walked out of the cabin then and there and proceeded to walk home".
The medical evidence
Dr Barkey gave evidence that she observed redness and tenderness, and an abrasion, in the complainant's genital area. She also observed a "narrow anal tear [that] extended from perianal tissue into the anus" and stated that:
"It was very tender to palpation. Bright blood was visible along the tear. A tear is a full thickness penetration of skin layers due to blunt force. The anal injury had been caused by blunt force. This could be by penis or other object" (Transcript 26 May 2010, p 5).
Dr Barkey said that once the anal injury had occurred "it would make the continuance of anal intercourse - well, because it would be so painful I think it would be unlikely that the recipient would be able to continue because it would be so painful" (Transcript 26 May 2010, p 13).
The Crown called evidence that presumptive tests for blood and semen on the inside, and for semen on the outside, of the condom were negative, whilst a presumptive test for blood on the outside of the condom was positive. The condom had a very small hole about two centimetres from its tip.
Semen matching the DNA profile of the appellant was found in swabs from the vagina, in greater quantity in that from the high vaginal area than in that from the lower vaginal area. Very few sperm were detected on the perianal swab and only two sperm heads were found on the anal swab. These sperm heads, it was said, may have been "picked up" from outside the anus as the swab was inserted (Transcript 26 May 2010, p 40).
THE APPELLANT'S CASE AT TRIAL
The appellant did not go into evidence at the trial.
CONVICTION APPEAL GROUND ONE: THE VERDICT IS UNSAFE AND UNSOUND
As the appellant's self-prepared written submissions were largely unstructured, it is convenient to adopt the Crown's categorisation of the specific matters that were put by the appellant in support of this ground of appeal. I shall then turn to the general proposition that the verdict is unsafe and unsound.
The cabin was pitch black so how could the complainant observe that the appellant's face "looked evil"
The complainant's evidence that she observed that the appellant's face "looked evil" was not challenged at the trial by the appellant's counsel and there is no reason to assume that there was insufficient ambient street or house lighting, or moonlight, to enable the complainant to see the appellant's face when she opened the door to let him in.
The scratch marks made by the complainant to the appellant's back were barely visible when photographed and there were no other wounds
That only light scratches were visible in a photograph of the appellant's back taken three days after the alleged offences, and the appellant's lack of other injuries does not detract from the complainant's evidence that she did not consent to sexual intercourse with the appellant. The complainant did not suggest that she inflicted any injuries to the appellant other than the scratches on his back.
Text messages sent by the complainant to the appellant were an attempt by her to manipulate the appellant
Consideration of the text messages exchanged on 1 and 2 May 2009 (see [13] and [14] above) does not support this proposition. The messages sent by the complainant on 1 May 2009 asserted that the appellant had subjected the complainant to a traumatic experience the previous night: "no one has ever mad me feel so scard in my life" [sic]. Her messages of 2 May 2009 were to similar effect, one asserting expressly that the complainant had raped her. The appellant's responses contained no denial, seemingly asserting at one point that he did not remember what had happened.
The complainant made inconsistent complaints to RS, Constable Cambridge and Dr Barkey
There were inconsistencies in these complaints, particularly concerning the number of acts of penile and anal intercourse. These inconsistencies were, legitimately, the subject of cross-examination and address by the appellant's counsel at the trial. However, they do not in my view cast doubt on the veracity of the complainant's evidence. As pointed out by McClellan CJ at CL in Mohamed v R [2008] NSWCCA 45 at [18]:
"Merely because there are inconsistencies in the evidence of a witness it does not follow that it should be rejected either in whole or in part. There are many reasons why inconsistencies may emerge in an account of an event by a person who has been physically threatened and subject to inordinate stress at the time the events occur. See 'Who is telling the truth? Psychology, common sense and the law.' (2006) 80 ALJ 655; see also R v Tubou [2001] NSWCCA 243 at [38]".
The complaints in question each involved allegations of vaginal and anal rape by the appellant but they were made on 1 and 2 May 2009, whilst the appellant was still in a distressed condition, and it is unsurprising that the emotional description given to her friend, RS, may have been unspecific as to the number and type of acts of intercourse and that she may have been confused about details when speaking to Constable Cambridge and Dr Barkey the following day.
The presence of the appellant's semen on the high vaginal swab taken from the complainant was because of the hole in the condom, not because he ejaculated without wearing a condom
This proposition is inconsistent with the forensic evidence indicating an absence of semen on both the inside and outside of the condom (see [20] above). That evidence also indicated that the amount of semen found on the high vaginal swab was consistent with ejaculation in that area. It was not suggested by or to any witness that that semen may have come to be there as a result of it leaching out of a small hole on the side of the condom, rather than ejaculation when no condom was worn.
AN's observation of the complainant's appearance after the appellant left was of marginal probative value given the uncertainty as to when this observation was made
There was no uncertainty as to when the observation was made as AN placed it on a night two days before the police visited her mother's home. No suggestion was made to her that such a visit occurred more than once. Moreover, the complainant's evidence of observing AN after the appellant left in the early hours of the morning on Friday 1 May 2009 confirmed that AN was speaking of the night in question.
The complainant delayed reporting the offences to the police for two days
The evidence of the complainant and RS explained why there was a two day delay in the assaults being reported to the police: the complainant was initially reluctant to report them but was persuaded to do so by her friend (Transcript 25 May 2010, p 42). The appellant's counsel conceded at the trial that the complainant had made a complaint at the first opportunity (the next day) to RS, and that the delay in reporting the offences to the police was adequately explained (Transcript 26 May 2010, pp 54 - 5).
The anal tear was consistent with unlubricated penile/anal intercourse
As noted earlier, Dr Barkey gave evidence that once the anal injury had occurred "it would be unlikely that the recipient would be able to continue because it would be so painful" (see [19] above). The appellant did not indicate in his description of events, given in his recorded interview, that the complainant spoke of pain, asked him to desist because of pain or, indeed, indicated that she wished to continue with anal intercourse despite the pain. His version of events was thus inconsistent with the injury and Dr Barkey's evidence concerning it.
In these circumstances the evidence of the anal tear constituted significant evidence in support of the Crown case.
Whether the verdict is unsafe and unsound
Having considered the specific points raised by the appellant in relation to this ground of appeal, it is now necessary to consider it in a more general fashion.
The ground invokes the power of the Court, conferred by s 6 of the Criminal Appeal Act 1912, to set aside a jury verdict on the ground that it is "unreasonable, or cannot be supported, having regard to the evidence". The principles applicable in determining such a ground of appeal are authoritatively stated in SKA v R [2011] HCA 13; 243 CLR 400. In accordance with those principles, I have undertaken "an independent assessment of the evidence, both as to its sufficiency and to its quality" (at [14]). As a result I have concluded that this ground should be rejected and that the Crown discharged its onus of proving beyond reasonable doubt that the appellant was guilty of the offences with which he was charged.
The complainant's evidence appears to me, from the transcript, to have been credible, with the inconsistencies in her complaints not sufficient to give me cause to doubt the veracity or reliability of her evidence. The jury's acceptance of her evidence, implicit in its verdict, indicates that there was nothing in her demeanour which required rejection of the evidence. Her testimony is supported by the medical evidence concerning injuries to her genitalia. This evidence, particularly when considered in light of the appellant's recorded interview, pointed strongly against the anal intercourse being consensual. Further, the exchanges of text messages on 1 and 2 May 2009 strongly supported the complainant's version of events, containing, as they did, complaints of serious misconduct by the appellant, with no denials by him in his responses. The evidence of AN, Constable Cambridge and Dr Barkey as to the complainant's distressed condition on 1 and 2 May 2009 similarly supported her evidence, as did the existence of scratch marks on the appellant's back. Moreover, the forensic evidence concerning the high vaginal swab (see [21] above) was inconsistent with evidence of the appellant that he wore a condom at all times. In my view the evidence pointed overwhelmingly to the appellant's guilt.
CONVICTION APPEAL GROUND TWO: PREJUDICIAL DIRECTIONS GIVEN TO JURY DURING TRIAL AND IN HIS HONOUR'S SUMMARY OF TRIAL
CONVICTION APPEAL GROUND THREE: JUDICIAL BIAS AGAINST THE APPELLANT BY HIS HONOUR JUDGE ELLIS
I shall consider these two grounds together. The matters put by the appellant in support of them are indicated below.
Judgment
The appellant challenges the trial judge's decision to grant the Crown leave under s 108 of the Evidence Act 1995 to adduce evidence of a prior consistent statement of the complainant. As the appellant's counsel did not object at the trial to the grant of leave, r 4 of the Criminal Appeal Rules precludes the appellant from taking this point now unless this Court grants him leave to do so. Leave should not be granted as there was no apparent error in his Honour's ruling, the appellant's counsel having cross-examined the complainant about prior, allegedly inconsistent, statements.
Similarly, unless leave is granted, r 4 precludes the appellant now objecting to the admission of evidence of his violence earlier in the relationship, as no objection to that evidence was made at the trial. No good reason has been given for a grant of leave under r 4. The evidence was specifically mentioned by the Crown Prosecutor when supporting an application by both parties for a ruling that evidence of the relationship between the parties would not be precluded by s 293 of the Evidence Act. No objection was taken by the appellant's counsel at that point, nor later when the evidence was led. The evidence, as led, was of a brief, general nature, and did not refer to any specific incidents.
The appellant also complains about the trial judge's decision to exclude question and answer number 189 from the tender of his Record of Interview. I discern no error in his Honour's decision.
Prejudicial directions
All directions referred to by the appellant in his written submissions are contained in the trial judge's Summing-Up. As no complaint about the Summing-Up was made by the appellant's counsel at the trial, r 4 of the Criminal Appeal Rules again applies. The appellant complains in particular about his Honour's directions concerning assessment of the reliability of witnesses, the significance of inconsistencies in the complainant's descriptions of events and the warning given to the jury pursuant to s 165 of the Evidence Act concerning the permissible use of the hearsay, complaint evidence. However, the appellant was unable to identify any error in these directions which appear to have been well-balanced and comprehensive. Accordingly, there is no basis for a grant of leave under r 4.
It follows from these remarks that there is no foundation for the appellant's contentions that the trial judge's conduct of the trial manifested bias against him or that the trial judge gave erroneous directions.
CONVICTION APPEAL GROUND FOUR: EVIDENCE OF CONSENT TO SEXUAL INTERCOURSE GIVEN TO THE APPELLANT BY THE COMPLAINANT NOT DISCREDITED BY CROWN DURING THE TRIAL
In the written record of the appellant's interview that was in evidence, the appellant described two acts of consensual sexual intercourse (see [17] above). The point he seeks to make by this ground of appeal is that that evidence was not discredited.
As the appellant did not give evidence at the trial, his version of events could not of course be challenged in cross-examination. Nevertheless, it stood for consideration by the jury along with the other evidence adduced at the trial. However, for the reasons I have given above, my view is that the Crown proved beyond reasonable doubt that the five acts of sexual intercourse that were the subject of the charges against the appellant occurred and were not consensual. This conclusion necessarily involves, as did that of the jury, the rejection of the appellant's evidence, given through the Crown's tender of his record of interview, that two acts of intercourse were consensual.
The appellant further contends that, on the basis of the complainant's text message of 30 April 2009 and their subsequent telephone conversation, he had reasonable grounds to believe that the complainant consented to the sexual intercourse that occurred. He submitted:
"The fact that in the Complainants [sic] own evidence she admits that sending the text message inviting the Appellant over for sex and then agreeing that the Appellant called later that night and asked if it was still alright to come over for sex and the Complainant replying 'yes', this shows that the Appellant had reasonable grounds to think the Complainant was consenting to intercourse ... Any person who has gone to such length to obtain consent from another person, as the Appellant did with the Complainant, must surely be protected under the law from such an allegation [of non-consensual intercourse]" (Written Submissions [63] and [69]).
Whilst the complainant undoubtedly led the appellant to believe, prior to his arrival at her home, that the complainant would consent to sexual intercourse, the complainant gave evidence that she made it clear to the appellant upon his arrival, and thereafter, that she had changed her mind. My, and the jury's, acceptance of this evidence requires the conclusion that the appellant knew that the complainant was not consenting to the sexual intercourse that occurred after he arrived at her home.
CONCLUSION ON CONVICTION APPEAL
For the reasons I have given, the appellant's conviction appeal should be dismissed.
SENTENCING APPEAL GROUND ONE: THE SENTENCE IS MANIFESTLY EXCESSIVE
A maximum penalty of 14 years imprisonment and a standard non-parole period of seven years is applicable to each of the offences of which the appellant was convicted. The sentencing judge, who was also the trial judge, concluded in his Remarks on Sentence of 23 August 2010 that the offences each fell in the middle of the range of seriousness but that the offences charged in Counts 1 and 3 were slightly less serious than those charged in Counts 2 and 4 (being penile/anal intercourse) and Count 5 which involved ejaculation.
In relation to subjective factors, the sentencing judge took into account the absence of any significant criminal history on the part of the appellant and his reasonable prospects of rehabilitation and of not re-offending. His Honour also took into account the appellant's "somewhat problematic" upbringing, which left him "poorly equipped for the emotional roller coaster of this particular relationship with the victim" (Remarks on Sentence, p 9).
As the appellant had not previously been in custody and the sentences were partially accumulated, his Honour found special circumstances that justified a limited change to the statutory ratio between the non-parole period and balance of term.
He then imposed the following sentences:
Counts 1 & 3: 7 years imprisonment with a non-parole period of 5
years to date from 19 May 2010;
Counts 2 & 4: 8 years imprisonment with a non-parole period of 5½
years to date from 19 November 2010;
Count 5: 8 years imprisonment with a non-parole period of 5
years to date from 19 November 2011.
OVERALL SENTENCE: 9½ years imprisonment with a non-parole period of 6½ years to date from 19 May 2010.
As the imposition of a sentence involves a discretionary judgment, the question for an appeal court where specific error is not shown is whether the sentence is "unreasonable or plainly unjust" or, as it is usually put, manifestly excessive (Markarian v R [2005] HCA 25; 228 CLR 357 at [25]). As pointed out in Markarian, "a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion" (at [28]).
In my view the objective seriousness of the appellant's offences needed to be assessed in the context of the relationship between the appellant and the complainant. As noted earlier, they had been together for some three years prior to their final break-up in March 2009. The complainant's evidence indicated that it was a sexual relationship (Transcript 25 May 2010, p 23), with the complainant at one stage conceiving, but losing, the appellant's child (Transcript 24 May 2010, p 2). The complainant accepted in cross-examination that after March 2009 all she sought from the appellant "was the occasional meeting for occasional sex" (Transcript 25 May 2010, p 24). This evidence was consistent with the complainant asking the appellant by text message to come to her home on 30 April 2009 for sex and nothing more. The appellant himself stated that the complainant "had used text messages to invite him over for sex on several occasions in the passed [sic] even when they were not seeing each other" (Appellant's Written Submissions [38]). Psychologist George Dieter, who was asked to provide a psychological assessment of the appellant prior to his sentencing, emphasised the 'casual, sexual' nature of his relationship with the complainant, and the fact that it was "within this emotional background that the current offence took place" (Report 21 June 2010, p 2). Whilst the relationship between the complainant and the appellant was conceded by the complainant to be "fiery" and "on again and off again" (ibid p 20), her feelings for the appellant must have been strong given that she sent him a text message the day after the sexual assaults, which in part read, "u know i love you so much that's wot braken my heart im scared moor of loseing the love I have for u".
His Honour does not seem to have attached any significance to the relationship in his reasoning, as he simply noted:
"that this offence was committed against the background of what had originally been a domestic relationship but which was at the time a casual sexual relationship between the victim and the offender" (Remarks on Sentence, p 5)
In relation to the significance of ejaculation, his Honour observed:
"I note defence submissions regarding what was said to be the lower level of criminality involved in ejaculation where there was some ongoing relationship, as distinct from a stranger situation. I am not sure that this is a legitimate distinction to make, but in any event it does seem to me that even in relationship situations the fact of ejaculation without a condom can properly be seen as an aggravating factor" (p 6).
The significance in sentencing of a relationship between an offender and a victim was considered by this Court in Bellchambers v R [2011] NSWCCA 131. In that case, offences under s 61I of the Crimes Act were committed on four occasions over a four year period, commencing a year after a relationship commenced between the victim and the applicant. The offences were accompanied by force and threats. In the course of his judgment Hoeben J (as his Honour then was) (with whom Campbell JA and RS Hulme J agreed) said:
"47 There was also a difficulty in his Honour's failure to review the facts, both relating to the circumstances of the offences and in relation to the applicant's personal and medical circumstances. A review of the offences would have revealed that while serious they occurred in a domestic relationship which involved considerable ambivalence on the part of the complainant. Whilst sexual assault even within the confines of a continuing relationship cannot be condoned, that fact and the comparatively low level of violence are matters of relevance to the objective seriousness of the offences. Regrettably, that comment is made against the background of sexual assaults which come before this Court involving very considerable threats and violence.
...
51 In [re-sentencing] I should record my view that each of the first three offences was, because of the factors I have identified, substantially below the midrange of objective seriousness, albeit not at the bottom of that range. The applicant's persistence in the face of the complainant's greater resistance in the case of the second offence makes that one somewhat more serious than the first.
52 The fourth offence was also appreciably below the midrange although, because it was committed in the context of the threats made on the previous day, more serious than the previous three".
The applicant was re-sentenced for the four offences to terms of imprisonment of three, four, four and five years respectively, with non-parole periods of two years for all offences other than the fourth offence for which the non-parole period was three years. After significant accumulation, no doubt influenced by the two year periods separating the first and second offences and also the second and third and fourth offences, the total sentence imposed was seven years with a non-parole period of five years.
The importance of considering the nature of the relationship between an offender and victim was also emphasised in R v Hendricks [2011] NSWCCA 203 at [86], in that case, in the context of consideration of the extent of concurrence of sentences. That a prior sexual relationship between a victim and an offender may, depending upon the particular circumstances of the case, be an important mitigating factor in sentencing for sexual offences was recognised by the Northern Territory Court of Criminal Appeal in Wiren v R (1996) 89 A Crim R 356 at 360 and following. See also R v Mason [2001] VSCA 62 at [6] and [7].
In the present case, the complainant suffered considerable pain as a result of the forced anal intercourse and her text messages of 1 and 2 May 2009 indicate that she suffered considerable emotional trauma as a result of the sexual assaults. However, in light of her lengthy prior sexual relationship with the appellant and the intermittent sexual relationship that still existed at the time of the offences, I do not consider that the offences can be equated to those involving sexual assaults by strangers, which must almost inevitably give rise to extreme terror and fear in the mind of the victim. Here, the victim had been prepared until moments before the assaults to have sexual intercourse with the appellant, and the complainant had indeed, only three minutes before the appellant's arrival at her home, invited him over for that very purpose. My view is that in these circumstances the sentencing judge erred in characterising the offences as falling within the mid-range of seriousness. They were in my view well below that, although not at the bottom of the range.
These comments are in no way intended to suggest that the appellant's offences were not serious. He committed serious criminal offences deserving of severe punishment. However, the sentences that the sentencing judge imposed, amounting to an overall sentence of nine and a half years with a non-parole period of six and a half years, were in my view manifestly excessive in light of the particular circumstances of the case.
SENTENCING APPEAL GROUND TWO: THAT ALL THE OFFENCES ARE ONE COURSE OF CONDUCT AND THUS THE SENTENCES SHOULD HAVE BEEN CONCURRENT
The principles relating to concurrency and accumulation of sentences were comprehensively summarised by Hall J in R v XX [2009] NSWCCA 115; 195 A Crim R 38 at [52]. It is sufficient for present purposes to say that those principles require the aggregate of the sentences for multiple offences to reflect their total criminality even though they may have been committed in the course of a single episode. In my view it was open to the sentencing judge to find that some accumulation was necessary in the present case on the basis that it could not be said that the criminality of each of the offences was completely comprehended by that of the others. The extent of accumulation was a matter for the sentencing judge and, if I had not been of the view that the sentences imposed were otherwise open to challenge, I would have concluded that the course he adopted fell within the range of accumulation that was reasonably open to him.
SENTENCING APPEAL GROUND THREE: HIS HONOUR FAILED TO TAKE ALL OF THE MITIGATING FACTORS INTO ACCOUNT WHEN SENTENCING THE APPELLANT
This ground was withdrawn.
SENTENCING APPEAL GROUND FOUR: SENTENCING OF THE APPELLANT DID NOT CONFORM WITH THE PRINCIPLES STATED IN MULDROCK v R
No criticism of the sentencing judge is implicit in this ground, or in what I say below, as his Honour, quite properly, applied the law as it stood at the date of sentencing. Nevertheless, the sentences imposed are open to challenge if his Honour's reasoning did not conform with the subsequently published decision in Muldrock v R [2011] HCA 39; 85 ALJR 1154. That decision has been considered in a number of subsequent decisions in this Court including R v Koloamatangi [2011] NSWCCA 288 and Zreika v R [2012] NSWCCA 44.
Muldrock precludes a sentencing judge from attributing determinative significance to the standard non-parole period. As the High Court said in that case:
"[28] Nothing in the amendments introduced by the Amending Act requires or permits the court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period".
In my view the sentencing judge in the present case appears to have adopted the approach now proscribed by Muldrock. Having determined that the objective seriousness of the offences lay in the middle of the range of seriousness, his Honour said:
"S 54B subs (2) [of the Crimes (Sentencing Procedure) Act] permits a court to impose a longer or shorter non parole period even when the standard non parole period applies, that is where an offence is a mid range offence after trial. Apart from the objective mitigating factors there are a number of subjective factors of a general nature as well as those which fall within s 21A" (Remarks on Sentence, p 7).
Later, his Honour said:
"The Court notes that sentencing is an intuitive process and not some mathematical formulation and that that is so even when the standard non parole period applies. That is that the Court does not have to, in determining to shorten a standard non parole period for reasons set out in s 21A or in the common law, propose to nominate a percentage discount or a period of time by which the standard non parole period is reduced by any of the particular objective or subjective mitigating factors" (ibid, p 9).
Although there is room for doubt, this reasoning appears to me to attribute greater significance to the standard non-parole period than is permitted, with the result that this reasoning is erroneous.
RE-SENTENCING
Section 6(3) of the Criminal Appeal Act 1912, provides as follows:
"(3) On an appeal under section 5 (1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal".
It follows from my finding that the sentences imposed were manifestly excessive that I consider, as contemplated by s 6(3), that "some other sentence ... is warranted in law and should have been passed". I therefore proceed to consider the re-sentence of the appellant.
Whilst it is appropriate to have regard to the applicable maximum sentence of 15 years and the standard non-parole period of seven years, the appropriate sentences for the appellant's offences should be determined by reference to all relevant factors. This requires the making of a value judgment as to what is the appropriate sentence given all those factors (Muldrock v R at [26] quoting McHugh J in Markarian v R [2005] HCA 25; 228 CLR 357 at [51]).
Taking into account the factors to which I have referred and those referred to by the sentencing judge in his Remarks on Sentence, my view is that the appellant should be re-sentenced in respect of Counts 1 and 3 to concurrent terms of imprisonment of four years, with non-parole periods of three years each to date from 19 May 2010, and in respect of Counts 2, 4 and 5, to concurrent terms of imprisonment of five years, with non-parole periods of three and a half years each, also to date from 19 May 2010.
The aggregate sentence that I propose is accordingly a term of imprisonment of five years, with a non-parole period of three and a half years to date from 19 May 2010. I have not allowed for any accumulation as the additional criminality of the three offences involving anal intercourse and penile/vaginal intercourse with ejaculation (Counts, 2, 4 and 5) is in my view sufficiently reflected in the longer sentences imposed for those offences, which have the effect of lengthening the aggregate sentence. I am satisfied, in accordance with the principle of totality, that the aggregate sentence reflects the total criminality of the appellant's conduct. The ratio of the balance of term to the non-parole period in respects of Counts 2, 4 and 5 differs from the statutory ratio but I find special circumstances on the basis that as the appellant has not previously been in custody, an extended period of supervision whilst he is on parole is appropriate.
ORDERS
For the reasons that I have given, I propose the following orders:
(1) Dismiss the appeal against conviction.
(2) Grant leave to appeal against sentence.
(3) Quash the sentences imposed in the District Court on 23 August 2010.
(4) In substitution for the sentences imposed on 23 August 2010, sentence the appellant as follows:
Counts 1 and 3: concurrent terms of imprisonment of 4 years with non-parole periods of 3 years each to date from 19 May 2010.
Counts 2, 4 and 5: concurrent terms of imprisonment of 5 years with non-parole periods of 3 years and 6 months each to date from 19 May 2010.
Overall sentence: imprisonment for 5 years with a non-parole period of 3 years and 6 months to date from 19 May 2010.
The earliest date upon which the appellant is eligible for release on parole is 19 November 2013.
McCALLUM J: I agree with Macfarlan JA. It is appropriate to say something about ground 1 in the conviction appeal. As stated by the High Court in M v R [1994] HCA 63; 181 CLR 487 at 492-493, an appeal on the ground that the verdict of the jury was unreasonable, or cannot be supported, having regard to the evidence raises a question of fact which this Court must decide "by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand". In applying that test, I have undertaken my own independent assessment of the evidence. For the reasons set out in the judgment of Macfarlan JA, which I gratefully adopt, I think that upon the whole of the evidence it was well open to the jury to be satisfied beyond reasonable doubt as to the appellant's guilt.
GROVE AJ: I agree with Macfarlan JA.
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Decision last updated: 08 October 2012
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